# Pahalwan Singh & Ors. (In Jail) v. State

- **Citation:** (2020) 2 ILRA 585
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-04
- **Case number:** J. Criminal Appeal No. 90 of 1986
- **Bench:** Bala Krishna Narayana, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pahalwan-singh-ors-in-jail-v-state-45714
- **Pages:** 31

## Headnote

A. Criminal Law-Indian Penal Code-Section
302/34 -Appeal against conviction.

The law is well settled that the testimony of a
witness cannot be discredited only on the ground
that the witnesses are related or interested. The only
requirement is that the testimony of such witness
should be scrutinized cautiously and carefully. (Para
35)

It would be hard to believe that the close relatives
shall leave the real culprit and shall implicate
innocent persons falsely simply because they have
enmity with the accused persons. (Para 48)

If the direct testimony of eye witnesses is reliable,
the same cannot be rejected on the basis of
hypothetical medical evidence, and the ocular
evidence, if reliable, should be preferred over
medical evidence. (Para 57)

The settled principle is that if there is some
difference of such nature between the ocular
testimony and medical evidence, ocular testimony
being direct evidence will be preferred over the
medical evidence. Both the eye-witnesses have
clearly proved the time of death as they have stated
that when the accused persons ran away after
committing the offence. (Para 59)

Motive is not a sine qua non for the commission of a
crime. Moreover, it takes a back seat in a case of
direct ocular account of the commission of the
offence by a particular person. In a case of direct
evidence the element of motive does not play such
an important role so as to cast any doubt on the
credibility of the prosecution witnesses even if there
be any doubt raised in this regard. Failure to prove
motive or absence of evidence on the point of
motive would not be fatal to the prosecution case
when the other reliable evidence available on record
unerringly establishes the guilt of the accused. (Para
64)

In a case of direct evidence the element of
motive does not play such an important role as
to cast any doubt on the credibility of the
prosecution witnesses even if there be any
doubts raised in this regard. If the eyewitnesses
are
trustworthy,
the
motive
attributed for the commission of crime may not
be of much relevance. Failure to prove motive
or absence of evidence on the point of motive
would not be fatal to the prosecution case
when the other reliable evidence available on
586 INDIAN LAW REPORTS ALLAHABAD SERIES
record unerringly establishes the guilt of the
accused. (Para 69)

Minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a ground
on which the evidence can be rejected in its
entirety. (Para 77)

Undoubtedly, delay in lodging FIR does not
make the complainant's case improbable when
such delay is properly explained. (Para 81)

It is settled law that the FIR is not supposed to
contain all details of prosecution version. It is
spontaneously written what comes in the mind
of informant. The only requirement is that at
the time of lodging FIR, the informant should
state all those facts which normally strike to
mind and help in assessing the gravity of the
crime or identity of the culprit briefly. (Para 83)

The injuries found on the body of the deceased
person find support from the medical evidence
by which the date and time of causing the
injuries is very much corroborated. There is no
substantial contradiction or discrepancies in the
evidence of the prosecution and some of the
minor contradiction and discrepancies which
have been discussed above goes to establish
the reliability of the witnesses and that also
shows that they are not tutored. Thus, the
witnesses examined by prosecution are natural,
credible and trustworthy. (Para 86)

Criminal Appeal rejected. (E-2)

List of cases cited:-

## Text

_Characters 0–39,863 of 103,522. This is a partial read: ask again with offset=39863 for what follows._

2 All. Pahalwan Singh & Ors. Vs. State
585

13. In view of the above, the order
dated 04.10.2019 is hereby quashed. The
proceedings shall now stand revived
before the Waqf Tribunal and shall be
considered and disposed of as per law with
expedition.

14. This Court appreciates the
valuable assistance provided by Sri Q. H.
Rizvi, learned Advocate in the matter.

15. The revision under Section 83(9)
of the Act, 1995 is allowed in the
aforesaid terms.

16. The Senior Registrar of this
Court at Lucknow shall communicate this
order to the Waqf Tribunal at Lucknow.
----------
(2020)02ILR A585

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE
THE HON'BLE BALA KRISHNA NARAYANA, J.
THE HON'BLE PRADEEP KUMAR SRIVASTAVA,
J.

Criminal Appeal No. 90 of 1986

Pahalwan Singh & Ors.
 ...Appellants (In Jail)
Versus
State ...Opposite Party

Counsel for the Appellants:
Sri Raghuvansh Mishra, Sri Arun Kumar
Singh, Sri Rahul Misra, Sri Harish Chandra
Tiwari A.C., Sri Raghubir Saran Agrawal

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law-Indian Penal Code-Section
302/34 -Appeal against conviction.

The law is well settled that the testimony of a
witness cannot be discredited only on the ground
that the witnesses are related or interested. The only
requirement is that the testimony of such witness
should be scrutinized cautiously and carefully. (Para
35)

It would be hard to believe that the close relatives
shall leave the real culprit and shall implicate
innocent persons falsely simply because they have
enmity with the accused persons. (Para 48)

If the direct testimony of eye witnesses is reliable,
the same cannot be rejected on the basis of
hypothetical medical evidence, and the ocular
evidence, if reliable, should be preferred over
medical evidence. (Para 57)

The settled principle is that if there is some
difference of such nature between the ocular
testimony and medical evidence, ocular testimony
being direct evidence will be preferred over the
medical evidence. Both the eye-witnesses have
clearly proved the time of death as they have stated
that when the accused persons ran away after
committing the offence. (Para 59)

Motive is not a sine qua non for the commission of a
crime. Moreover, it takes a back seat in a case of
direct ocular account of the commission of the
offence by a particular person. In a case of direct
evidence the element of motive does not play such
an important role so as to cast any doubt on the
credibility of the prosecution witnesses even if there
be any doubt raised in this regard. Failure to prove
motive or absence of evidence on the point of
motive would not be fatal to the prosecution case
when the other reliable evidence available on record
unerringly establishes the guilt of the accused. (Para
64)

In a case of direct evidence the element of
motive does not play such an important role as
to cast any doubt on the credibility of the
prosecution witnesses even if there be any
doubts raised in this regard. If the eyewitnesses
are
trustworthy,
the
motive
attributed for the commission of crime may not
be of much relevance. Failure to prove motive
or absence of evidence on the point of motive
would not be fatal to the prosecution case
when the other reliable evidence available on
586 INDIAN LAW REPORTS ALLAHABAD SERIES
record unerringly establishes the guilt of the
accused. (Para 69)

Minor
contradictions,
inconsistencies,
embellishments or improvements on trivial
matters which do not affect the core of the
prosecution case, should not be made a ground
on which the evidence can be rejected in its
entirety. (Para 77)

Undoubtedly, delay in lodging FIR does not
make the complainant's case improbable when
such delay is properly explained. (Para 81)

It is settled law that the FIR is not supposed to
contain all details of prosecution version. It is
spontaneously written what comes in the mind
of informant. The only requirement is that at
the time of lodging FIR, the informant should
state all those facts which normally strike to
mind and help in assessing the gravity of the
crime or identity of the culprit briefly. (Para 83)

The injuries found on the body of the deceased
person find support from the medical evidence
by which the date and time of causing the
injuries is very much corroborated. There is no
substantial contradiction or discrepancies in the
evidence of the prosecution and some of the
minor contradiction and discrepancies which
have been discussed above goes to establish
the reliability of the witnesses and that also
shows that they are not tutored. Thus, the
witnesses examined by prosecution are natural,
credible and trustworthy. (Para 86)

Criminal Appeal rejected. (E-2)

List of cases cited:-

1. Bhagwan Jagannath Markad Vs. St. of Mah.,
(2016) 10 SCC 537,

2. Mukesh v St. of NCT of Delhi, AIR 2017 SC 2161,

3. Bharwada Bhoginbhai Hirjibhai v. St. of Guj. AIR
1983 SC 753,

4. Ugar Ahir v. St. of Bihar, AIR 1965 SC 277,

5. St. of UP v Anil Singh, 1988 (Supp.) SCC 686,

6. Harijana Thirupala v. Public Prosecutor, High
Court of AP, (2002) 6 SCC 470,

7. Krishna Mochi v. St. of Bihar, (2002) 6 SCC 81,

8. Dalip Singh v. St. of Punj. (1954) SCR 145,

9. Masalti V. St. of U.P. (AIR 1965 SC 202),

10. Darya Singh v St. of Punj., AIR 1965 SC 328,

11. St. of UP v Kishanpal (2008) 16 SCC 73,

12. Appa v. St. of Guj., AIR 1988 SC 698,

13. State of AP v S. Rayappa (2006) 4 SCC 512,

14. Pulicherla Nagaraju @ Nagaraja Reddy v. St. of
AP (2007) 1 SCC (Cri) 500,

15. Satbir Singh v St. of UP, (2009) 13 SCC 790,

16. M.C. Ali 18 v. St. of Kerala, AIR 2010 SC 1639,

17. Himanshu v. St. (NCT of Delhis, (2011) 2 SCC
36,

18. Bhajan Singh and others Vs. St. of Har.,(2011) 7
SCC 421,

19. Jayabalan v U.T. of Pondicherry; 2010(68) ACC
308 (SC),

20. Dharnidhar v St. of UP, (2010) 7 SCC 759,

21. Ram Bharosey v. St. of UP AIR 2010 SC 917,

22. Balraje @ Trimbak v St. of Maha., (2010) 6 SCC
673,

23. Jalpat Rai v St. of Har. AIR 2011 SC
2719,

24. Waman v St. of Maha. AIR 2011 SC
3327,

25. Shyam Babu v St. of UP, AIR 2012 SC
3311,

26. Dhari & Others v St. of UP, AIR 2013
SC 308,
2 All. Pahalwan Singh & Ors. Vs. State
587
27. Ganapathi v St. of Tamilnadu, AIR
2018 SC 1635,

28. Rupinder Singh Sandhu vs St. of Punj.,
(2018) 16 SCC 475,

29. Mahavir Singh Vs. St. of Har., (2014) 6 SCC
716,

30. Suresh Chandra Bahri Vs. St. of Bihar, JT
1994 (4) SC 309,

31.
Modis
Medical
Jurisprudence
and
Toxicology, 22nd Edition, pages 246, 247,

32. Solanki Chimanbhai Ukabhai vs State of
Gujrat, AIR 1983 SC 484,

33. Abdul Sayeed vs St. of MP, 2010 (10) SCC
259,

34. Krishnan Vs. St., AIR 2003 SC 2978,

35. Thamman Kumar v. St. of U.T. of Chandigarh,
AIR 2003 SC 3975,

37. Abdul Sayeed Vs. St. of M.P, (2010) 10 SCC 259,

38. Rakesh Vs. St. of UP, 2012 (76) ACC 264 (SC),

39. Sadhu Saran Singh Vs. St. of UP, (2016) 4 SCC
357,

40. Dayal Singh Vs. St. of Uttaranchal, AIR 2012 SC
3046,

41. Ram Swaroop v St. of U.P., 2000 (40) ACC 432
(SC),

42. Ramjee Rai v St. of Bihar, 2007 (57) ACC 385
(SC),

43. Abu Thakir v State; AIR 2010 SC 2119,

44. St. of U.P. v Nawab Singh; AIR 2010 SC 3638,

45. Bipin Kumar Mondal v St. of W.B, 2005 SCC
(Criminal) 33,

46. Shivraj Bapuray Jadhav v St. of Kar., (2003) 6
SCC 392,

47. Thaman Kumar v St. of U.T. of Chandigarh;
(2003) 6 SCC 380,

48. St. of H.P. vs. Jeet Singh, (1999) 4 SCC370,

49. Badam Singh v. St. of M.P., AIR 2004 SC 26,

50. Sheo Shankar Singh v St. of Jharkhand;
2011(74) ACC 159 (SC),

51. Ravinder Kumar v St. of Punj., 2001 (2) JIC
(SC),

52. St. of H.P. v Jeet Singh; (1999) 4 SCC 370,

53. Pannayar v St. of T.N. by Inspector of Police;
AIR 2010 SC 85,

54. G. Prashwanath v St. of Kar., AIR 2010 SC 2914,

55. Jagdish v St. of M.P., 2009 (67) ACC 295 (SC),

56. Ujjagar Singh v St. of Punj., AIR 2008 SC (Supp)
190,

57. Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC,

58. St. of UP v Nawab Singh; 2005 SCC (Criminal)
33,

59. Shivraj Bapuray Jadhav v St. of Kar., (2003) 6
SCC 392,

60. R.R. Reddy v St. of AP, AIR 2006 SC 1656,

61. Sucha Singh v St. of Punj., AIR 2003 SC 1471,

62. St. of Rajasthan v Arjun Singh AIR 2011 SC
3380,

63. Varun Chaudhry v St. of Raj. AIR 2011 SC
72,

64. Babu Lodhi v St. of UP (1987) 2 SCC 352,

65. Saddik Vs. St. of Guj., (2016) 10 SCC 663,

66. Nathu Singh v St. of MP, 1974 Cri. L J 11,

67. Pramod Kumar Vs. St. (GNCT) of Delhi, AIR
2013 SC 3344
588 INDIAN LAW REPORTS ALLAHABAD SERIES
68. Govindaraju alias Govinda Vs. St. of Shri
Ramapuram P.S., AIR 2012 SC 1292,

69. Ayaaubkhan v St. of Mah., AIR 2013 SC 58,

70. Jagdish vs St. of UP, 1996 (33) ACC 495,

71. St. of UP vs Lakhan Singh, 2014 (86) ACC
82 (All) (DB),

72. Rupinder Singh Sandhu vs St. of Punj.,
(2018) 16 SCC 475,

73. State of U.P. v. Naresh; 2011 (75) ACC
215) (SC),

74. Gosu Jayarami Reddy and another Vs. St.
of A.P., (2011) 3 SCC(Cri) 630,

75. Parsu Ram Pandey v/s St. of Bihar AIR
2004 SC 5068,

76. Shivappa v. St. of Kar.; AIR 2682,

77. Ramchandaran v. St. of Kerala AIR 2011 SC
3581,

78. Mukesh Vs. St. for NCT of Delhi, AIR 2017
SC 2161,

79. Bhagwan Jagannath Markad Vs. St. of
Maha., (2016) 10 SCC 53,

80. Meharaj Singh v. St. of UP, (1994) 5 SCC
188,

81. Kishan Singh through LRs v. Gurpal Singh
(2010) 8 SCC 775,

82. Jarnail Singh Vs. St. of Punj., 2009 (6)
Supreme 526.

(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. This criminal appeal has been filed
against the judgment dated 03.1.1986 in
Sessions Trial No. 66 of 1984, State Vs.
Pahalwan & others, passed by 1st
Additional Sessions Judge, Jhansi by
which the appellants Pahalwan Singh,
Nathu Singh, Brij Kishore alias Pappu and
Har Narain have been convicted and
sentenced under Section 302/34 IPC for
life imprisonment.

2. During pendency of appeal,
appellant no. 3 Brij Kishore alias Pappu
and appellant no. 4-Har Narain died and
vide order dated 25.1.2018 of this Court,
their appeal has been abated.

3. The appellant no. 2 Nathu Singh
despite every process being issued did not
appear nor he was arrested nor there was
any trace of his sureties and hence vide
order dated 04.7.2019 of this Court, Sri
Rahul
Mishra,
Advocate
has
been
appointed as Amicus Curiae to argue on
behalf of appellant no. 2 Nathu Singh.
Again by order dated 19.8.2019, Sri
Harish Chandra Tiwari has been appointed
as Amicus Curiae in place of Sri Rahul
Mishra.

4. Brief facts of the case are that an
FIR was lodge by Lakhan Lal Yadav at PS
Prem Nagar on 03.2.1984 at 6.50 AM
alleging that he resides in House No. 299,
Nainagarh. On 03.2.1984 at about 5.30
AM his father Amrat Lal had gone to the
latrine to ease himself, the informant was
feeding his buffalo and thereafter, he also
went to latrine to ease himself where he
saw in the light of his torch that accused
Pahalwan armed with a Sabbal (an iron
rod used for digging), Har Narain, Brij
Kishore and Nathu Singh armed with lathi
in their hands were beating his father. The
informant shouted for help whereupon, his
younger brother Ram Sewak and several
other persons reached there. Seeing them,
the accused persons ran away from the
place. All the accused persons were
identified by the witnesses in the light of
torch. They found that Amrat Lal was
2 All. Pahalwan Singh & Ors. Vs. State
589
already died. The deceased Amrat Lal and
accused Ram Charan are real brothers and
accused Pahalwan is son-in-law of accused
Ram Charan. Accused Pahalwan was
dismissed from his railway service and he
believed that on the complaint of Amrat
Lal, the action was taken against him and
because of that he was having enmity with
Amrat Lal. Accused Ram Charan had
hatched a conspiracy for his murder and
after conspiracy in order to create defence
of alibi, he got admitted himself in a
hospital. The informant had seen the
accused Ram Charan on 02.2.1984 at
about 5.00 PM and he suspected that Ram
Charan had conspired in murder of Amrat
Lal. The accused persons are relatives and
close associates of each other and they
committed murder of Amrat Lal.

5. On the basis of this report, the
offence was registered by the police. The
inquest report was prepared and the
postmortem of dead body was conducted.
The accused persons were arrested and
blood stained Tahmad of accused Brij
Kishore alias Pappu was recovered from
his possession at his instance, whereas
when accused Pahalwan was arrested, he
was wearing blood stained Bushirt and
Pant. On his instance, the blood stained
Sabbal was also recovered. All these
articles were taken into possession by the
police and were sent for chemical
examination. The statements of witnesses
were recorded by the Investigating Officer
and after completion of investigation,
charge
sheet
was
submitted
against
accused Ram Charan, Brij Kishore alias
Pappu, Pahalwan, Har Narain, Nathu and
Veer Singh for the offence under section
302/120-B IPC.

6. The charges were framed against
accused Pahalwan, Brij Kishore alias
Pappu, Har Narain and Nathu for the
offence under section 302 read with
section 34 IPC and against accused Ram
Charan and Veer Singh for the offence
under section 120-B read with section 302
IPC. The accused persons denied the
charges and claimed trial.

7. The prosecution examined PW-1
Lakhan Lal (informant) has proved written
report as Ext. Ka-1 and as eye witness he
gave
statement
with
regard
to
the
commission of offence. He has also
proved the letter of Amrat Lal sent to S.P.
Jhansi Ext. Ka-2 along with certificate of
posting Ext. Ka-3, letter of Amrat Lal sent
to Divisional Railway Manager dated
17.8.1982 Ext. Ka-4, letter of Amarat Lal
sent to Divisional Railway Manager dated
11.11.1982 Ext. Ka-5, memo of torch Ext.
Ka-6, Lota as material Ext. 1, two pants,
two jarkins and one shirt of deceased as
material Ext. 2 to 6, the Tahmad of Brij
Kishore and the pant and shirt of Pahalwan
as material Ex. 7, 9 and 10 and the Sabbal
which was used by the accused Pahalwan
as weapon for offence Ext.-8. PW-2 Ram
Sewak Yadav is an eye witness. PW-3
Atar Singh is the witness of memo of Lota
Ext. Ka-7, memo of blood stained and
plain earth Ext. Ka-8, container of blood
stained and plain earth material Ext. 12 &
13. PW-4 Sabarjeet Singh is the witness of
recovery of Tahmad and has proved
recovery memo Ext. Ka-9. PW-5 Jahangir
is the witness of recovery of blood stained
Sabbal who has also proved during crossexamination an application Ext. Kha-1,
affidavit Ext. Kha-2, his signature on Ext.
Kha-3 and signature and stamp of Stamp
Reporter Ext. Kha-4. PW-6 Dr Dhirendra
Saxena has proved the postmortem report
as Ext. Ka-11. PW-7 Dr. R.C. Jain,
Medical Officer, St. Jude's Hospital,
Jhansi has proved the paper with regard to
590 INDIAN LAW REPORTS ALLAHABAD SERIES
treatment of accused Ram Charan as Ext.
Ka-12 and Ka-13. PW-8 Dr. P.C. Gupta,
Medical Officer, District Hospital, Jhansi
has similarly proved the bed head ticket of
Ram Charan as Ext. Ka-14 and discharge
slip as Ext. Ka-15. PW-9 SI Ram Awtar
Chaturvedi PS Kotwali is the witness of
arrest of accused persons, recovery memo
Ext. Ka-16 and material Ext. 9 & 10. PW10 SI Hari Shanker Sachan has proved the
inquest report Ext. Ka-17, Naksha Lash
Ext. Ka-18 and the Challan Lash Ext. Ka19, letter to C.M.O. Ext. Ka-20, memo of
clothes of deceased Ext. Ka-21. He has
also proved the recovery memo of blood
stained and plain earth, pant and shirt of
accused Pahalwan. He has further proved
GD Report Ext. Ka-23 and Ka-24. PW-11
SI Vaijnath Mishra has conducted the
investigation, who has proved GD Ext.
Ka-26, recovery memo of blood stained
Tahmad of Brij Kishore Ext. Ka-9 and
recovery memo of blood stained Sabbal
Ext. Ka-.10 He has also proved site map
Ext. Ka-27 as well as place of recovery of
Tahmad Ext. Ka-28 and place of recovery
of Sabbal Ext. Ka-29. He further proved
memo Ext. Ka-32 and charge sheet Ex.
Ka-33 and the GD Entry Ext. Ka-34,
medical examination report Ext. Ka-35
along with other recovered articles from
accused persons.

8. The statement of accused persons
was recorded under section 313 Cr.P.C.
and in their statement, they have admitted
the relationship of accused Ram Charan
with the deceased, but it has been denied
that accused Pahalwan was residing with
Ram Charan. Reovery of blood stained
Tahmad, blood stained Sabbal, pant and
shirt has also been denied. The accused
persons have stated that they have been
falsely implicated due to enmity. Accused
Nathhu has stated that he has been falsely
implicated because of enmity with one
Dashrath, accused Har Narain stated that
he was arrested from his house which is
situated about 16-17 km away from the
place of occurrence and he has been
falsely
implicated
on
account
of
relationship with Ram Charan. Accused
Ram Charan has stated that he was ill on
the date of incident and was admitted in a
hospital and because of enmity, he has
been falsely implicated. Accused Veer
Singh has stated that he has been falsely
implicated as there is no evidence against
him. No defence evidence was given from
the side of accused persons.

9. After hearing learned counsel for
the accused persons and learned D.G.C.
(Criminal) and after perusing the record,
the learned trial court acquitted Ram
Charan and Veer Singh from the charges
and convicted the appellants.

10. Aggrieved by said judgement,
this appeal has been filed on the ground
that conviction is against the weight of
evidence on record and against the law and
the sentence awarded is too severe.

11. Heard Sri Rahul Mishra assisted
by Sri Raghuvansh Mishra, learned
counsel for appellant no. 1, Sri H.C.
Tiwari, Amicus Curiae for appellant no. 2
and learned A.G.A. for the State.

12. The submission of the learned
counsel/Amicus Curiae for the appellants
is that both the eyewitnesses examined by
the prosecution are real brothers and sons
of the deceased and are partisan witnesses
and because of inimical relations, they
have given false evidence against accusedappellants.
Their
testimony
is
contradictory
and
they
have
made
improvements. The place of occurrence is
2 All. Pahalwan Singh & Ors. Vs. State
591
not proved and the presence of alleged
eyewitnesses is highly doubtful on the
place and at the time of occurrence. Two
accused persons have been acquitted on
the basis of same evidence and the
incriminatory articles shown to have been
recovered from the accused are planted
and false.

13. On the contrary, the learned
AGA has submitted that FIR has been
lodged promptly naming the accused
persons, two eyewitnesses have supported
the prosecution version and the learned
trial court has rightly convicted and
sentenced the accused-appellants on the
basis of evidence on record.

14. The only question which is
required to be addressed and determined in
this appeal is whether the conclusion of
guilt arrived at by the learned trial court
and the sentence awarded is legal and
sustainable under law and suffers from no
infirmity and perversity.

15. The prosecution examined PW-1
Lakhan Lal who proved written report as
Ext. Ka-1 and as eye witness he gave
statement with regard to the commission
of offence. He has also proved the letter of
Amrat Lal sent to S.P. Jhansi showing his
apprehension that accused might cause
harm to him which is Ext. Ka-2 along with
certificate of posting Ext. Ka-3, letter of
Amrat Lal sent to Divisional Railway
Manager, dated 17.8.1982 Ext. Ka-4, letter
of Amarat Lal sent to Divisional Railway
Manager dated 11.11.1982 Ext. Ka-5 and
memo of torch Ext. Ka-6. He has also
identified Lota as material Ext. 1, two
pants, two jarkins and one shirt of
deceased as material Ext. 2 to 6, the
Tahmad of Brij Kishore and the pant and
shirt of Pahalwan as material Ext.- 7, 9 and
10 and the Sabbal which was used by the
accused Pahalwan as weapon for offence
material Ext.- 8. He has further stated that
the accused Ramcharan is the brother of
deceased Amratlal, accused Brij Kishore is
son, accused Veer Singh is brother-in-law,
Nathu
is
nephew
(bhanja),
accused
Pahalwan
is
son-in-law
of
accused
Ramcharan, whereas accused Har Narain
is brother-in-law of accused Brij Kishore.
PW-1 has stated that about one and three
months before, at about 5-5.30 AM, his
father Amrat Lal had gone to ease himself.
After sometimes, he also went to ease
himself. He heard some sound and in the
light of torch, he saw that the accused
persons Pahalwan having sabbal in hand,
Nathu, Har Narain and Brij Kishore
having lathi in their hands, were beating
his father. He cried whereupon his
younger brother Ramsewak and others
reached there. The accused persons ran
away from there. They went nearer and
found Amrat Lal dead. He lodged FIR by
giving a written report which was
inscribed by one Dashrath on his dictation.
The witness has further stated that about 3
years before accused Pahalwan committed
marpeet with his father about which his
father sent a complaint to SP and other
authorities. His father also complained to
the Railway Authorities about accused
Pahalwan on the basis of which, he was
removed from service. On account of this
enmity, his father was killed by the
accused persons.

16. PW-2 Ramsewak has also stated
that on the shout of his brother, he reached
there and saw the accused persons beating
his father. Accused Pahalwan was having
sabbal and others were having lathi in
there hands. He saw this in the light of
torch of his brother Lakhan. He found his
father dead thereafter. He has also stated
592 INDIAN LAW REPORTS ALLAHABAD SERIES
that accused Ramcharan had enmity with
deceased and because of that and on his
instigation the accused persons killed his
father.

17. PW-3 Atar Singh is the witness
of memo of Lota Ext. Ka-7, memo of
blood stained and plain earth Ext. Ka-8,
container of blood stained and plain earth
material Ext. 12 & 13 and has stated that
all
these
exhibits
were
taken
into
possession by police from the place of
occurrence and memo was prepared on
which he signed as witness.

18. PW-4 Sabarjeet Singh is the
witness of recovery of Tahmad and has
proved recovery memo Ext. Ka-9.

19. PW-5 Jahangir is the witness of
recovery of blood stained Sabbal who has
also proved during cross-examination an
application Ext. Kha-1 and affidavit Ext.
Kha-2, his signature on Ext. Kha-3 and
signature and stamp of Stamp Reporter
Ext. Kha-4.

20. PW-6 Dr Dhirendra Saxena has
proved the postmortem report as Ext. Ka11 and has stated that on 4.2.1984, while
posted as Radiologist in the District
Hospital, Jhansi, conducted postmortem of
the dead body of Amrat Lal at 4 PM who
was brought by the police constables
Subhash Chandra and Shamim Ahamad.
The deceased was aged about 44 years and
his death took place one and half day
before.

External Examination

Following injuries were found on the
dead body:

1. One lacerated wound 4 cm x 2
cm x brain deep on the left of forehead just
above left eyebrow on its medial half,
horizontal and clotted blood present.

2. Lacerated wound 3 cm x 1 cm
x brain deep 3 cm above from injury no. 1
on the left side of forehead, oblique just
above lateral half of left eyebrow. Clotted
blood present.

3. Lacerated wound 6 cm x 3 cm
x brain deep on left side of forehead 3 cm
above injury no. 1, oblique, clotted blood.

4. Lacerated wound 9 cm x 6 cm
x brain deep on the left side of head,
oblique, 5 cm above left ear, brain matter
coming out clotted blood adhere places.

5. Lacerated wound 4 cm x 1 cm
x bone deep on the left on the left mastoid
area, oblique 2 1⁄2 cm behind left ear.
Clotted blood present.

6. Lacerated wound 3 1⁄2 cm x 1
cm x bone deep on the back of left ear,
oblique, clotted blood present. 2 cm above
injury no. 5.

7. Lacerated wound 3 cm x 1 cm
x bone deep, oblique at the back of left
ear, 2 cm above injury no. 6.

8. Lacerated wound 3 cm x 1⁄2 cm
tearing left ear pinna, clotted blood
present.

9. Lacerated wound 3 cm x 1⁄2 cm
tearing left ear lobule, clotted blood
present.

10. Abrasion 6 cm x 1 cm on the
back Rt forearm 2 cm above wrist,
oblique.

Rigor mortis was present in lower
limb. Greenish discolouration on lower
part of abdomen. Abdomen distended
slightly and foul gas coming out on
opening. Bones of left side of skull
including frontol, parietal, temporal and
occipital are fractured in multiple pieces,
tearing the meninges and depressed and
lodged in brain. Scalp hair walled with dry
clotted blood.
2 All. Pahalwan Singh & Ors. Vs. State
593

Internal Examination

Multiple fracture of left frontal,
parietal, temporal and occipital bones
depressed and in pieces. Membranes badly
torn on left side. Brain crushed and
coming out on left side. Left anterior
middle and posterior and cranial fossae are
fractured. About 50 gm yellow liquid
present in abdomen. In small intestine,
pasty material adhere to the walls. large
intestine half full faecal matter. In the
opinion of the doctor, death was caused
due to injury to brain as a result of antemortem injuries. The doctor has stated that
the deceased died on 3.2.1984 at about 5-5
1⁄2 AM. Injury no 1 to 9 was possible by
blunt object like lathi and sabbal, if used
like lathi. Injury no 10 was possible by
friction on hard surface. PW-6 has stated
that the injuries to deceased was sufficient
to cause death.

21. PW-7 Dr. R.C. Jain, Medical
Officer, St. Judus Hospital, Jhansi has
proved the paper with regard to treatment
of accused Ram Charan as Ext. Ka-12 and
Ka-13. He has stated that Ramcharan was
admitted in the Hospital on 2.2.1984
because of fever, cough and headache
from a week.

22. PW-8 Dr. P.C. Gupta, Medical
Officer, District Hospital, Jhansi has
similarly proved the bed head ticket of
Ram Charan as Ext. Ka-14 and discharge
slip as Ext. Ka-15.

23. PW-9 SI Ram Awtar Chaturvedi
PS Kotwali is the witness of arrest of
accused Pahalwan who has stated that the
accused tried to run away. He was wearing
blood stained shirt and pant and the same
was taken into possession and sealed and
memo was prepared. The witness has
proved the recovery memo as Ext. Ka-16
and material Ext. 9 pant & 10 shirt.

24. PW-10 SI Hari Shanker Sachan
has proved the inquest report Ext. Ka-17,
Naksha Lash Ext. Ka-18 and the Challan
Lash Ext. Ka-19, letter to C.M.O. Ext. Ka20, memo of clothes of deceased Ext. Ka21. He has also proved the recovery memo
of blood stained and plain earth, pant and
bushirt of accused Pahalwan. He has
further proved GD Report Ext. Ka-23 and
Ka-24. The witness has stated that on
3.2.1984, he reached on spot with SO and
prepared inquest report. The place where
the dead body was lying was very dirty
and not appropriate, and therefore, the
dead body was shifted in the open ground
situated nearby in front of the house of
Baldeo and Nanhe Khan. Five witnesses
were appointed as panch and in their
presence the inquest report was prepared
and dead body was sealed. Necessary form
and letters were prepared for postmortem
and the same was handed over to
constables. He has further stated that the
lota of deceased (a kind of pot for carrying
water) mat. Ext.1 was also found there
which was taken into possession, sealed
and memo was prepared. Blood stained
and plain earth was lifted from the place of
occurrence,
sealed
and
memo
was
prepared. All these articles were deposited
in the PS on the same day at 3.35 PM vide
GD no. 27 Ext. Ka-22. The witness is also
a witness of arrest of accused Pahalwan
and the recovery of blood stained shirt and
pant he was wearing which were sealed
and memo prepared and broght and
deposited in the PS on the same day on
4.50 PM vide GD report Ext. Ka-23. He
has further stated that on the same day at
about 6.30 PM accused Veersingh was
arrested and brought to PS and an
594 INDIAN LAW REPORTS ALLAHABAD SERIES
endorsement to that effect was made in the
GD.

25. PW-11 SI Vaijnath Mishra has
conducted the investigation, who has
proved GD Ext. Ka-26, recovery memo of
blood stained Tahmad of Brij Kishore Ext.
Ka-9 and recovery memo of blood stained
Sabbal material Ext. Ka-10. He has also
proved site map Ext. Ka-27 as well as
place of recovery of Tahmad Ext. Ka-28
and place of recovery of Sabbal Ext. Ka29. He further proved memo Ext. Ka-32
and charge sheet Ex. Ka-33 and the GD
Entry Ext. Ka-34, medical examination
report Ext. Ka-35 along with other
recovered articles from accused persons.
The witness has also proved check FIR
which was prepared on the basis of written
report
and
the
GD
in
which
an
endorsement to that effect was made. On
his direction, inquest report was prepared.
He arrested accused Brij Kishore on 10.30
AM from Hardol chabutara on 3.2.1984
and on the same day accused Ramcharan
was admitted in St. Jude's Hospital, who
on being inquired, said that he is not well
and
therefore,
after
getting
him
discharged, he was sent to Civil Hospital.
On being asked, accused Brij Kishore said
that he can get his tahamad recovered he
was wearing at the time of incident. He
took him to his house and got recovered
the same which he had concealed below
his bedding. The same was sealed and
memo was prepared. He also took
statements
of
witnesses
Sarjeet,
Ramsewak and other witnesses. He
inspected
place
of
occurrence
and
prepared site map. The torch of Lakhanlal
was
taken
in possession
and
after
preparing memo, the same was duly
returned to him. The recovered articles and
accused Brij Kishore was admitted in
Police Station. He also examined accused
Pahalwan in the Police Station who made
statement that he has concealed the
weapon which was used in commission of
offence and on his instance, IO got the
sabbal recovered from Raidas Temple
chabutara from below the sand. The sabbal
was sealed which is Ext.-8 and memo was
prepared which is Ext. Ka-10. Of both
recoveries, he prepared site map and
sealed articles were deposited in Police
Station. He also examined accused Veer
Singh and other witnesses in the Police
Station itself. Accused Nathu surrendered
on 8.2.1984 in the court who was
examined in jail. Treatment papers of
accused Ramcharan was obtained and after
completing investigation, charge-sheet was
submitted by him. He has further stated
that incriminating articles recovered from
the place of occurrence and during
investigation
was
sent
for
chemical
examination.

26. The learned counsel for the
appellants has submitted that the two
witnesses of fact PW-1 Lakhan Lal Yadav
and PW-2 Ramsewak Yadav have been
wrongly relied upon by the learned trial
court and they could not be believed as
they are real sons of deceased and highly
interested witnesses. There presence at the
place of occurrence is doubtful at the time
of
incident
as
there
is
material
contradiction,
discrepancy
and
improvements in their statement. It has
been stated by PW-1 that on his shout, his
brother PW-2 and other 3-4 persons of the
locality reached there, but none of such
persons has been made witness nor any of
them has been examined.

27. We have considered the above
arguments in the light of evidence on
record. Only PW-1 has stated that with
PW-2, some persons of locality reached
2 All. Pahalwan Singh & Ors. Vs. State
595
there. PW-2 has not stated as such. In the
cross-examination, PW-1 has said that he
did not recognize who were the persons
reaching there. He has further said that he
is not able to say whether they reached
there when accused were beating his father
or soon after the incident. He has further
stated that after one or two hours, he saw
some persons coming there. PW-2 has
positively stated that except him, none
reached there hearing the shout of his
brother. It is pertinent to mention that in
the charge-sheet, the IO has not shown any
other eyewitness which means that either
none came there at the time of incident or
even if came, did not offer to be witness. It
may be mentioned that people avoid
becoming witness and giving evidence in
such kind of cases. Life is complicated and
none wants it to be more complicated. The
submission
with
regards
to
nonexamination
or
non-availability
of
independent witness is concerned, it is
hardly relevant in view of unimpeachable
testimony of PW-1 and PW-2 who have
fully supported the prosecution version. In
Bhagwan Jagannath Markad Vs. State
of Maharashtra, (2016) 10 SCC 537 and
Mukesh v State of NCT of Delhi, AIR
2017 SC 2161, it has been held that if a
witness examined in the court is otherwise
found reliable and trustworthy, the fact
sought to be proved by that witness need
not be further proved through other
witnesses though there may be other
witnesses available who could have been
examined but were not examined. Nonexamination of material witness is not a
mathematical formula for discarding the
weight of the testimony available on
record however natural, trustworthy and
convincing it may be. It is settled law that
non-examination of eye-witness cannot be
pressed into service like a ritualistic
formula for discarding the prosecution
case with a stroke of pen. Court can
convict an accused on statement of sole
witness even if he is relative of the
deceased
and
non
examination
of
independent witness would not be fatal to
the case of prosecution.

28. The witnesses have been put to
rigorous cross-examination on the point of
deceased whether eased out or easing
when killed, he got the opportunity to wear
his pant and wash himself, where he eased
out in the joint latrine or outside, whether
his latrine was found there and his private
part was found to have been washed, who
pulled up his pant, whether the deceased
was wearing underwear or LANGOT (a
kind of underwear), whether his latrine got
pasted on his clothes and the like, and on
this basis, attempt has been made to show
contradiction in the statement of witnesses.
In a criminal incident like this, such
contradiction
or
discrepancy
is
insignificant and meaningless, as it is not
possible for witnesses to keep focus on
such silly things while beholding a crime,
particularly when the target of such crime
is one's father himself.

29.

The
Supreme
Court
in
Bharwada
Bhoginbhai Hirjibhai
v.
State of Gujarat AIR 1983 SC 753 has
laid
down
following
principles
to
appreciate the testimony of eyewitnesses:

"(1) By and large a witness
cannot
be
expected
to
possess
a
photographic memory and to recall the
details of an incident. It is not as if a video
tape is replayed an the mental screen. (2)
Ordinarily it so happens that a witness is
overtaken by events, The witness could not
have anticipated the occurrence which so
often has an element of surprise. The
mental faculties therefore cannot be
596 INDIAN LAW REPORTS ALLAHABAD SERIES
expected to be attuned to absorb the
details. (3) The powers of observation
differ from person to person. What one
may notice, another may not. An object or
movement might emboss its image on one
person's mind, whereas it might go
unnoticed on the part of another. (4) By
and large people cannot accurately recall
a conversation and reproduce the very
words used by them or heard by them.
They can only recall the main purport of
the conversation. It is unrealistic to expect
a witness to be a human tape recorder. (5)
In regard to exact time of an incident, or
the time duration of an occurrence,
usually, people make their estimates by
guesswork on the spur of the moment at
the time of interrogation. And one cannot
expect people to make very precise or
reliable estimates in such matters. Again,
it depends on the time-sense of individuals
which varies from person to person. (6)
Ordinarily a witness cannot be expected to
recall accurately the sequence of events
which take place in rapid succession or in
a short time span. A witness is liable to get
confused, or mixed up when interrogated
later on. (7) A witness, though wholly
truthful, is liable to be overawed by the
Court atmosphere and the piercing crossexamination made by counsel and out of
nervousness mix up facts, get confused
regarding sequence of events, or fill up
details from imagination on the spur of the
moment. The sub-conscious mind of the
witness sometimes so operates on account
of the fear of looking foolish or being
disbelieved though the witness is giving a
truthful and honest account of the
occurrence witnessed by him - perhaps it
is a sort of a psychological defence
mechanism activated on the spur of the
moment."

The Supreme Court, therefore, held:

"Discrepancies which do not go
to the root of the matter and shake the
basic version of the witnesses, therefore
cannot be annexed with undue importance.
More
so
when
the
all
important
"probabilities-factor" echoes in favour of
the version narrated by the witnesses."

30. In Ugar Ahir v. State of Bihar,
AIR 1965 SC 277, it held:

"The maxim falsus in uno, falsu
in omnibus (false in one thing, false in
everything) is neither a sound rule of law
nor a rule of practice. Hardly one comes
across a witness whose evidence does not
contain a grain of untruth or at any rate
exaggerations,
embroideries
or
embellishments. It is, therefore, the duty of
the court to scrutinise the evidence
carefully and, in terms of the felicitous
metaphor, separate the grain from the
chaff. But, it cannot obviously disbelieve
the substratum of the prosecution case or
the material parts of the evidence and
reconstruct a story of its own out of the
rest."

31. In State of UP v Anil Singh,
1988 (Supp.) SCC 686, it has been held
by the Supreme Court that a Judge does
not preside over a criminal trial merely to
see that no innocent man is punished. A
Judge also presides to see that a guilty man
does not escape from punishment. One is
as important as the other. Both are public
duties which the judge has to perform.
Again, in Harijana Thirupala v. Public
Prosecutor, High Court of AP, (2002) 6
SCC 470, it has been ruled as under:

"..In appreciating the evidence
the approach of the court must be
integrated not truncated or isolated. In
other words, the impact of the evidence in
2 All. Pahalwan Singh & Ors. Vs. State
597
totality on the prosecution case or
innocence of the accused has to be kept in
mind in coming to the conclusion as to the
guilt or otherwise of the accused. In
reaching a conclusion about the guilt of
the accused, the court has to appreciate,
analyse and assess the evidence placed
before it by the yardstick of probabilities,
its intrinsic value and the animus of
witnesses."

32. In Krishna Mochi v. State of
Bihar, (2002) 6 SCC 81, the Supreme
Court of India again laid emphasis on
realistic approach to be adopted by the
criminal
courts
while
appreciating
evidence in criminal trial and said:

"The court while appreciating
the evidence should not lose sight of these
realities of life and cannot afford to take
an unrealistic approach by sitting in an
ivory tower. I find that in recent times the
tendency to acquit an accused easily is
galloping fast. It is very easy to pass an
order of acquittal on the basis of minor
points raised in the case by a short
judgement so as to achieve the yardstick of
disposal. Some discrepancy is bound to be
there in each and every case which should
not weigh with the court so long it does
not materially affect the prosecution case.
In case discrepancies pointed out are in
the realm of pebbles, the court should
tread upon it, but if the same are boulders,
the court should not make an attempt to
jump over the same. These days when
crime is looming large and humanity is
suffering and the society is so much
affected
thereby,
duties
and
responsibilities of the courts have become
much more.